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108 Cards in this Set

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  • Back
At time of execution, testator must satisfy four elements to have capacity
1 18+ yrs

2 Understands extent of her property

3 Knows the recipient:
-spouse or domestic partner
-those whose interests affected by the will

4 Must know the nature of her act of executing a will (but NOT legal technicalities)

Consequence of no capacity; exception
Entire will NOT valid, so property passes by intestate succession

EXCEPTION: If testator had prior valid will that was purportedly revoked by a later will (made w/o capacity), first will is probated b/c later will couldn't have revoked w/o capaa

Typical capacity fact patterns
Testator has conservator appointed

Testator has mental disorder diagnosis


What is the insane delusion rule? Four elements and consequence as to will's validity
Wills can be attacked IF AT TIME OF EXECUTION, testator suffered from insane delusion

1 Testator had false belief
2 False belief produce of sick mind
3 NO evid to support belief; NONE!
4 Delusion affected testator's will

Consequence is that ONLY that pt of will affected is invalid; that pt goes to residuary devisee or, if none, intestate succession
Definition of residuary gift
That part of will not otw expressly disposed of; often goes to residuary devisee

Five elements of fraud
1 Representation
2 Material fact
3 Known to be false by wrongdoer
4 Purpose of inducing action/inaction
5 In fact induces action/inaction desired

Three types of fraud
1 Fraud in execution

2 Fraud in inducement

3 Fraud in provoking T from revoking

Fraud in execution definition; consequence
EITHER someone forges T's signature to a will
OR T is given a doc to sign, purportedly power of atty but in fact is a will and T signs

Entire will NOT valid; property passes by intestate succession unless prior valid will

Fraud in inducement definition; consequences
Definition: Wrongdoer's representations affect contents of T's will

Consequence: ONLY affected pt of will is invalid


1 Give property to residuary devisees, if any
2 IF no residue, intestate succession
3 Constructive trust remedy

Fraud in preventing T from revoking definition; consequences
Definition: Like fraud in the inducement

Consequences: NO probating of the will; instead, immediate intestacy + constructive trust

What is undue influence? What are the 3 ways to establish it?
T's free agency is subjugated

1 Prima facie case
2 Presumption
3 Statutory undue influence
Elements for the type of undue influence called prima facie? Consequence?

1 Susceptibility: T's weakness in free will

2 Opportunity: wrongdoer had access to T

3 Unnatural result

4 Participation: wrongdoer's exertion of influence

Consequence: ONLY affected pt of will is not valid; otw, residuary devisees, intestacy, and constructive trust

Elements for the type of undue influence called presumption? Consequences?
1 Confidential relationship btw T and beneficiary-wrongdoer (anything from lawyer-client to two friends)

2 Beneficiary helped execute the will

3 Unnatural result

Consequence: ONLY affected pt of will is not valid; otw ,residuary devisees, intestacy, and constructive trust

Rule of the type of undue influence called statutory undue influence?

When does rule not apply?

CA law generally invalidates a donative transfer from transferor to person who:

--Drafted the instrument
--Is related to drafter by marriage or marriage-like situation
--Care custodian
--Is in fiduciary relationship w/T AND who transcribes testamentary instrument

Rule does NOT apply IF:
--Transferor is related to, married to drafter
--Instrument reviewed by independent atty who counsels transferor
--Ct determines no wrongdoing by "clear and convincing" evid

Consequences: Transferee does not take gift to the extent that gift exceeds that person's intestate share; rest to residuary devisees and intestacy

Definition of mistake in content

Relief given depending on type of mistake
Wrong beneficiary named OR wrong gift is made


--IF omission, NO remedy (cts don't rewrite wills)
--IF addition, remedy may be given (usually striking addition)
Definition of mistake in execution?

Relief given depending on type of mistake
T signs wrong doc

--IF T mistakenly signs will believing it is non-testamentary, will is NOT probated b/c intent missing
--IF there are reciprocal/mutual wills w/switched signatures, reformation in equity

What are the kinds of mistake?
Mistake IN:

1 Content
2 Execution
3 Inducement
4 Description
5 Validity of subsequent testamentary instrument (dependent relative revocation)
5 Living kids (pretermission)

Definition of mistake in description (ambiguity)

Consequences depending on type of ambiguity
No one or nothing fits description
Two+ persons or things fit description

--IF latent, introduce parol evid
--IF patent, introduce parol evid (at common law, would have been invalid)

Mistake in validity of subsequent testamentary instrument (or, DRR, dependent relative revocation): what does DDR allow a ct to do?
To ignore the revocation of first will on grounds that T revoked first b/c T mistakenly believed that later will effectuated his intent

What is the DDR rule? Consequences?
1 T revokes will, or portion thereof
2 Mistaken belief that SUBSTANTIALLY IDENTICAL will effectuates her intent


Revocation of first will is conditional, dependent on second effectuating T's intent; if no intent, first will is NOT revoked

What is DDR rule as to destroyed wills?
CA's lost will laws where lost will can be probated IF there is a witness (e.g. drafting atty)

What are the two rules (scenarios) for mistake involving kids, or pretermission? Consequence?
Rule 1: Kid is pretermitted IF born/adopted AFTER all testamentary instruments are executed and not provided for in any testamentary instrument

Consequence: Pretermitted kid takes intestate share of estate

Rule 2: Kid is NOT pretermitted IF born/adopted BEFORE all testamentary instruments are executed and not provided for in any testamentary instrument

Consequence: Kid gets nothing UNLESS T made mistake in omission
Components of the will
Elements of integration, or what papers make up the will?

Two ways to establish integration?
For papers to be integrated:

1 Intent
2 Presence of papers at time of execution

To establish, prove:
--Physical connection among all pages
--Logical connection (grammar)
Components of the will

What is incorporation by reference? Four elements?
Non-integrated writing is given testamenary effect and becomes part of will

1 Doc or writing
2 In existence at time of execution
3 Doc clearly identified in will
4 T intended to incorporate doc

*One can incorporate an invalid doc
Components of the will

Definition of facts of independent significance? Question to ask to determine?
Who a beneficiary is, or what gift is given, may be given meaning by facts of significance independent from T's will

Question: Would this fact have existed even w/o the will?
Components of the will

Elements for writing disposing of limited tangible personal property
1 Writing must be referred to in will, dated, and signed by T
2 Writing must describe items and recipients w/reasonable certainty
3 Writing executed before/after will
4 Writing directs disposition of tangible personal property LESS THAN $5k/item, $25k/aggregate
Components of the will

What is a pour-over will?

3 ways to validate a pour-over provision?
Where part/all of T's estate is devised to trustee of an inter-vivos trust to be administered acc to that trust; and the trust doc contains the important terms that are not in the will (b/c will merely references trust)

Validation via:
--Incorporation by reference
--Fact of independent significance
--UTATA (uniform testamentary additions to trusts act) so long as there is valid trust in existence BEFORE will execution
Formalities of execution for attested wills
Five elements of attested will? Post-2009 twist?
Same 5 has for traditional formalities

1 In writing

2 Signed by one of the following 3 people: T, 3rd person in T's presence and at T's direction, conservator

3 Signing in presence of 2 witness--BOTH present SIMULTANEOUSLY

4 Witnesses must sign will during T's lifetime

5 Witnesses understand the instrument to be T's will

Post-2009 twist: In CA, can avoid all witness elements IF can prove T's intent by "clear and convincing" evid
Formalities of execution for attested wills

What is an interested witness? Consequence and presumptions?
Interested witness is a witness who is a devisee under the will

Consequence: Will is STILL valid BUT there is a presumption that there is wrongdoing (CA modern law)

Interested witness can rebut presumption, but if can't, witness-beneficiary takes an amount that does NOT exceed intestacy amount

Presumption does NOT apply if witness-beneficiary is taking in FIDUCIARY capacity (e.g. trustee)
Formalities of execution for attested wills

What is a conditional will? How probated?
One which validity is made conditional by its own terms

Probated ONLY IF condition met
Formalities of execution for holographic (handwritten) wills
What are the two elements for valid holograph?
1 Signed by T
2 Material provisions made in T's handwriting (e.g. beneficiary names, gifts)
Formalities of execution for holographic (handwritten) wills

Must stmt of testamentary intent be on face of holographic will?

Three issues w/testamentary intent

--T merely lists names of people and next to each name, assets T owns. Will? Intro extrinsic evid
--Series of letters written by T qua integration? Intro extrinsic evid
--What if testamentary intent is already there in a commercial form will? Fine.
Formalities of execution for holographic (handwritten) wills

Is a date needed? Issues?

BUT, lack of date can be problem w/:

--Inconsistent wills: undated holograph that is inconsistent w/another will is NOT valid to extent of inconsistency w/o proof of later dating
--Capacity: T could have not had capacity during period when undated holograph was executed
What is a codicil?
Testamentary instrument executed in compliance w/CA probate code that MODIFIES, AMENDS OR REVOKES WILL

What is republication?
Codicil REPUBLISHES a will, so date of execution is moved to codicil execution

Republication problems w/re to pour-over/incorporation by reference, and pretermission
Pour-over and incorporation by reference: watch for instances when the referenced writing in a will is changed after execution; need codicil for this

Pretermission: kid born post-will is NOT omitted if codicil later republishes that will

Rules for revoking codicils and wills w/codicils
Will, then codicil, then T revokes codicil: Will stands, codicil goes

Will, then codicil, then T revokes will: Will goes, codicil goes
Revocation by physical act
3 elements for revocation by physical act
1 Destruction of will (can strike out too)

2 T must have simultaneous intent to revoke along w/act of destruction

3 T must do act, or someone in T's presence or at T's direction
Revocation by physical act

What is a cancellation? Interlineation?
Cancellation is crossing out

Interlineation is writing in btw lines
Revocation by physical act

What does cancellation of one co-beneficiary do?

What can save a will from interlineation?
Uncancelled co-beneficiary takes whatever share he would have taken under uncancelled will; rest goes to residue, intestacy

DDR will preserve initial, uninterlineated will IF interlineated gift is worth more than original gift
Revocation by physical act

What are duplicate wills?

What is the rule?
Duplicate ORIGINAL wills; NOT copies

If T, or someone in T's presence or at T's direction, revokes one, BOTH are revoked
Revocation by physical act

What if one finds will in mutilated condition?
If found mutilated at T's death, rebuttable presumption is that T revoked will
Revocation by subseq written instrument
How many ways can Will1 be revoked by Will2?
Two ways

Express AND implied
Revocation by subseq written instrument

What is implied revocation?
Where Will2 totally disposes of T's estate, and nothing left for Will1
Revocation by subseq written instrument


If T makes Will1, then Will2, can T revoke Will2 and retain Will 1? If so, how?

IF physical act: NO UNLESS T manifests intent to revive

IF by subseq instrument like revoking Will2 w/codicil, NO UNLESS T manifests revival in codicil
Revocation by operation of law
What happens when there is an omitted child? Does he get anything from T? Exceptions?
YES, takes what he would have taken from T under intestacy + any assets held in inter vivos trust

This means that other gifts will be reduced and abated; therefore, revocation

--T's intent that future kids not take
--T has kid at time of execution, and gives nearly everything by will/trust to parent of omitted child
--Decedent provided for omitted kid some other way
Revocation by operation of law

What happens to omitted spouse (spouse who marries decedent after execution of testamentary instruments)? Does she get anything from T? Exceptions?
Spouse gets what she would have gotten had T died intestate

--T's intent
--Spouse signed waiver (what is a waiver? 3 elements below)
--Decedent provided for spouse in some other instrument

Waiver requires:
1 In writing
2 Full disclosure
3 Independent counsel OR waiver was fair

CanNOT be unconscionable
Revocation by operation of law

3 testamentary gift rules for final dissolution of marriage/partnership
1 Revocation of devise IF annulment or divorce (MORE than legal separation)
2 Devise reinstated IF will is unchanged and T remarries former partner
3 Rules do NOT apply if will states otw
Revocation by change in property holdings (ademption)

4 kinds of gift
Specific devise: unique, T's intent is all that's needed

General devise: nothing unique, executor can give the gift OR its fair value

Demonstrative devise: general-specific hybrid where gift is from a particular fund, but executor can substitute w/general property

Residuary devise: everything not disposed of in will
Revocation by change in property holdings (ademption)

3 reasons to classify gifts
Problems with:

1 Ademption by extinction (arises when testator does not have possession at death)
2 Ademption by satisfaction
3 Abatement problems
Revocation by change in property holdings (ademption)

What is ademption by extinction? In CA, what kinds of gifts avoid ademption by extinction problems?
When specific gift fails b/c T did not own property at time of T's death, saved by T's intent for gift NOT to fail

In CA, following replaces intent for gift not to fail:

Conservator sells off assets
Eminent domain
Revocation by change in property holdings (ademption)

What is ademption by satisfaction?

4 ways to establish satisfaction
T gives beneficiary inter vivos down-payment on devise (so devisee only takes the balance after deducting what he already got)

1 Will provides for deduction
2 T declares satisfaction in contemporaneous writing
3 Devisee acknowledges satisfaction in writing at any time
4 Property given in satisfaction is same property that is subject of specific gift to devisee
Revocation by change in property holdings (ademption)

What is an advancement? What is major distinction btw advancement and satisfaction?
Inter vivos down payment made by an intestate to an heir apparent

In satisfaction, where devisee predeceases T, devisee's heir must accept deduction

In advanement, heir-apparent's heir does NOT have to accept deduction
Ks to make a will or devise, or to not make a will or devise

5 ways for a K to NOT revoke or to make a will
1 Will or other instrument state material provisions of the K
2 Express reference in will or other instrument to K
3 Writing signed by decedent evidencing a K
4 Clear and convining evid of agreement btw decedent and promisee enforeable in equity: ESTOPPEL
5 Clear convincing evid of agreement btw decedent and 3rd person for benefit of claimant; ESTOPPEL
Ks to make a will or devise, or to not make a will or devise

When does cause of action arise for these Ks?
Death of decedent
Decedent behaved in a way that looked like fraud of promisee
Ks to make a will or devise, or to not make a will or devise

What is a joint will?

What is a mutual will?

What is a joint and mutual will?

Does creation raise a presumption of a K to not revoke or make a will?
Will of 2 or more people on one doc

Separate wills of 2+ people which are reciprocal

Reciprocal principles on one instrument

NO presumption
Restrictions on testamentary dispositions

Four rules to protect the surviving spouse or domestic partner (acc to community property)
Protection re CP: T can dispose of 1/2 of CP

Protection re QCP: T can dispose of only 1/2 QCP

Widow's election: When T attempts to dispose of more than 1/2 CP/QCP, so widow chooses btw will or 1/2 CP

Protection re illusory transfers of QCP and widow's election: Inter vivos transfer by decedent of QCP to 3rd person w/o consideration IS allowed UNLESS transfer is illusory (decedent retained control over QCP)
Restrictions on testamentary dispositions

Which killers cannot take any benefits under will or by intestacy?
Felonious, intentional killers

BUT, killers retain 1/2 interest in property that was joint tenancy and severed by murder
Intestate succession
Under community property law, what does a surviving spouse take?
CP: Their share of CP
QCP: Their share of QCP

SP IF no issue: all
SP IF one kid: 1/2 SP
SP IF 2+ kids: 1/3 SP
SP IF no issue but parent: 1/2 SP
Intestate succession

Intestate scheme in order
--Issue of parents
--Issue of grandparents
--Issue of pre-deceased spouse
--Next of kin
--Parents of pre-deceased spouse
--Issue of parents of pre-deceased spouse
Intestate succession

Whenever issue take by intestacy, they take acc to Probate Code s. 240
Issue of same degree take per capita, or equally in own rt

Issue of more remote degree take "per capita w/representation"

Intestate succession

Rule for adopted kids; exception?
Adopted kids ALWAYS treated as natural kid

Adoption severs relationship w/adopted child's natural parents EXCEPT:

--Adoption is by pouse of natural parent
--After death of either of natural parents
Intestate succession

When can stepkids or foster kids by considered as adoped? 3 elements
1 Relationship began during child's minority
2 Continued through parties' lifetimes
3 Established by clear convincing evid that the step/foster parent would have adopted but for a legal barrier (e.g. no parental consent)
Distribution of the estate: Who can take?
What is a posthumous kid? How does he take?
Kid conceived during lifetime of intestate or T, but born after death of intestate or T

Posthumous kid deemed heir of intestate, beneficiary of T's will
Distribution of the estate: Who can take?

What is foundational rule that implicates lapse/anti-lapse rules?
For beneficiary to take a devise, beneficiary must survive T; dead people do not take
Distribution of the estate: Who can take?

Rule of lapse
If beneficiary predeceases T, beneficiary's gift lapses (fails) UNLESS will says otw
Distribution of the estate: Who can take?

When does anti-lapse statute apply? 2 elements

What is the rule?
Applies ONLY IF devisee who predeceased T:

1 Was kin to T or to former spouse of T
2 Predeceased devisee left issue

Rule is that issue steps into shoes of deceased devisee

Distribution of the estate: Who can take?

To what instruments does the anti-lapse law apply?
Wills AND revocable trusts
Distribution of the estate: Who can take?

When does simultaneous death issue come up? What is rule?

How does it work differently for intestacy and heirs?
When no clear and convincing evid that one predeceased another, assuming predeceasing is important

Rule is that the person who needs survival does NOT get survival

For intestacy and heirs, follow 120 hr rule where for an heir to take, heir must survive intestate by 120 hrs
Distribution of the estate: What does a beneficiary take?
What is after acquired property? What is the rule?
After acquired property is property acquired after will was executed

Rule is that will passes ALL property T owned at death, including after acquired property
Distribution of the estate: What does a beneficiary take?

What about increase on investment during T's lifetime?

Increase after T's death and during probate?
Increases also pass IF owned by T at death

After T's death and during probate, devisee keeps the following increases:

--Stock dividends
--Stock splits
--Cash dividends
--Interest on indebtedness
Distribution of the estate: What does a beneficiary take?

Increases also pass IF owned by T at death

Do general devisees get the increases too?
NO, EXCEPT general pecuniary gifts
Distribution of the estate: What does a beneficiary take?

Increases also pass IF owned by T at death

When does abatement of gifts arise?
--When necessary to pay for share of omitted child or spouse
Distribution of the estate: What does a beneficiary take?

What is exoneration? What is CA view?
Debt is extinguished

CA view is that there is NO automatic exoneration; devisee may take specific gift subject to encumbrance UNLESS T's will says otw
Will substitutes
What is a gift causa mortis?

What are the two elements? What could destroy the gift?
Gift made in contemplation of imminent death


1 PERSONAL property ONLY
2 Donor makes delivery to donee

Destroyed IF donor survives the peril
Will substitutes

What 3 ways to deliver property for gift cause mortis?
Symbolic (note repping the gift)

Definition of private express trust (PET)
Fiduciary relationship with respect to property whereby one person, the TRUSTEE, holds legal title for the benefit of another, the BENEFICIARY, and which arises out of a manifestation of intent to create it for a legal purpose

What kind of property is covered by PET? What kind not?
Covered: Presently existing transferable property interest

NOT covered: Illusory interests like future profits or a debt

What can/cannot be the beneficiary of a PET?
Any ascertainable person/group; but NOT huge groups

What happens to trust if there is no trustee?
Trust does NOT fail

Ct appoints trustee

In meantime, settlor retains legal title

How to manifest trust intent?
ONLY present manifestations

Precatory words (wish, hope) NOT enough

Which trusts must be in writing?
Real property; SOF issue

Personal, NO need for writing

When can trust take effect? 2 choices, and what is extra requirement for one
At settlor's death
During settlor's lifetime, MUST have DELIVERY

Illegal purpose: at creation vs after creation
At creation, ct should:
--Excise bad part
--Invalidate trust, return asset to settlor
--Punish settlor, give trust to trustee

After creation: Resulting trust, and resulting trustee must transfer property back to settlor

Elements of PET
1 Manifestation of trust intent
2 Presently existing interest in transferable property
3 Identify beneficiary (unless charitable trust)

To what kind of trust does RAP not apply?
Charitable trust

What is cy pres?
IF charitable trust with settlor general charitable intent for problem with execution, court can modify it to effectuate settor intent

NOT possible for specific intent

What is honorary trust?
Trust that has NO ascertainable beneficiary and confers NO substantial benefit to society

So, in btw PET and charitable trust

What is totten trust?
Simply intent to leave what's left in bank acct to beneficiary; really a will

What is voluntary alienation? Allowed?

When beneficiary transfers his interest in trust to, say, bank for money now

What is involuntary alienation?
When creditor, e.g., attaches trust to get payment from beneficiary

What is spendthrift trust? Creditor exception
Where there is NO in/voluntary alienation.

Beneficiaries canNOT transfer interest

Creditors canNOT attach trust UNLESS preferred creditors like gov't, child support kids, spousal support spouse, alimony spouse, etc.

What is a support trust? Can there be in/voluntary alienation?
Trustee required to use ONLY so much income/principal as is necessary for beneficiary's health, support, maintenance, education


NO voluntary alienation

Generally NO involuntary alienation EXCEPT preferred creditors

What is discretionary trust? Can there be in/voluntary alienation?
Trustee given sole and absolute discretion to determine how much to pay beneficiary, if ever, and when to pay, if ever


NO voluntary alienation OR involuntary alienation, UNLESS trustee decides to pay, then it must pay

What is a resulting trust? When does it arise?
Implied in fact trust based on presumed intent of parties


Arises when:

1 PET ends and no provision for what to do with corpus
2 PET fails b/c no beneficiary
3 Charitable trust ends and no cy pres
4 PET fails b/c illegal after creation
5 Excess corpus than that required by PET
6 Purchase money resulting trust (A pay consideration to B to have title transferred to C, presumption that C is trustee for benefit of A)
7 Semi-secret trust (will makes a gift to person to hold as trustee, but no beneficiary)

What is a secret trust?
Will on its face makes gift outright to A, but gift is given on basis of oral promise by A to use the property for benefit of B

Difference in remedies btw semi-secret trust and secret trust?
Semi-secret trust: resulting trust

Secret trust: constructive trust

What is oral real estate trust? What is SOF issue?
S orally conveys real property to A to hold for benefit of B, but deed only communicates a fee simple transfer.

A will try to keep property by raising SOF, but A will NOT be allowed to invoke SOF IF:

1 Fiduciary relationship btw S and A
2 Fraud in inducement on A's part
3 Detrimental reliance by B

What are trustee's powers?

What does trustee owe to beneficiary?



Due care
Not to delegate


What are three tests for duty to invest? What duty is always implied in it?
--State lists where good investments are gov't bonds, fed insured CODs, etc.
--Common law reasonably prudent test
--Uniform Prudent Investor Act

Distinction: Under UPIA, each individual investment is NOT scrutinized, rather entire portfolio is

ALWAYS duty to diversify investments

What are liabilities of trustee to third persons? Common law vs modern rules
Liability in K: Trustee can be sued either in personal capacity (his assets vulnerable) or in representative capacity (only trust assets vulnerable)

Common law: Trustee sued in personal capacity, w/rt to indemnification from trust assets UNLESS expressly states rep capacity

Modern: Presumption of rep capacity


Liability in tort

Trustee personally liable ONLY IF trustee is personally at fault

When can settlor modify trust? When can ct?
Settlor: IF settlor expressly reserves power to modify

Ct: Two types
1 Cy pres for charitable trusts
2 Deviation power to change provisions IF
--Unforeseen circumstances

When does settlor have power to revoke revocable trust?
Majority rule: Settlor MUST reserve power

Minority rule: Power to revoke UNLESS trust is expressly irrevocable

Three ways to terminate irrevocable trusts
--Settlor and beneficiaries all agree
--All beneficiaries agree to terminate AND all material purposes accomplished
--Operation of law: passive trusts AND Statute of Uses

Life tenant gets what income?

Life tenant's interest pays for what expenses?
Cash dividends
Interest income
Net business income


--Interest on loan indebtedness
--Minor repairs

Remainderman gets what income? His interest pays for what expenses?
--Stock dividends
--Stock splits
--Net proceeds on sale of trust asset


--Principal on loan indebtedness
--Major repairs/improvements

Allocation of cash vs stock dividends

Allocation of profit from sale

Cash allocated to income

Stock allocated to trust principal

Sale profits allocated to principal

UPIA allows some adjustment power to trustee